Two on Consent

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Since it seems to never rain but pour, the past week has landed us with not one but two instances of mansplaining on the topic of sexual assault with a particular emphasis on giving consent while drunk.

First up is an opinion piece by Peter Berkowitz published in the Wall Street Journal on the 20th. In it, he discusses a letter issued by the Obama administration and addressed to colleges and universities that details guidelines for dealing with sexual assault accusations. The letter, among other things, encourages schools to take allegations more seriously, discourages direct cross-examination of the victim by the accuser, and requires that the allegations be reviewed by a disciplinary board consisting of faculty and administration.

To any rational thinking human being, this sounds like a major step forward. Sexual assault and rape are ridiculously underreported, and campus police forces in particular have a sketchy track record when it comes to appropriately responding to reports of rape and assault. This directive would foster an environment in which victims would feel more inclined to come forward, and would have a higher chance of being heard.

But that’s not the conclusion that Berkowitz draws. For him, this directive is not a means to make the college experience safer for everyone, but an evil plot schemed by radical feminists to ruin the lives of unsuspecting men. To do this, he makes quite a few astounding leaps (not the least of which is the idea that the Obama administration likes to cater to radical feminists).

Berkowitz writes,

“The consequences for a wrongly convicted student are devastating: Not only is he likely to be expelled, but he may well be barred from graduate or professional school and certain government agencies, suffer irreparable damage to his reputation, and still be exposed to criminal prosecution”.

Truly, it would be horrific for anyone to have to deal with any sort of a false criminal accusation. However, Berkowitz addresses this point without ever considering the thousands of rape survivors who have never received any justice (and consequently the thousands of rapists who got off scott free). For someone who claims to be so concerned about justice, that seems like an odd point to neglect. He reveals the basic flaw of his argument when he writes this:

“Where are the professors of history, political science and law who will insist clearly and in public that due process is a fundamental component of American political institutions and culture, a cornerstone of our legal system, and indispensable in a free society to the fair administration of justice?”

To Berkowitz, clearly, this directive presents a slanting of the judiciary process towards the victim and their allegations. However, the point he seems to miss is that this directive is meant to correct a currently existing bias towards the accused. This directive is not meant to ensure that countless innocent college students will be punished for crimes they did not commit. It is meant to ensure that countless violated college students will have a better chance of receiving the justice they deserve.

What increases Berkowitz’s concern is what he sees as an ambiguity in the matters of consent when it is combined with alcohol consumption. He writes,

“On campus, where casual sex is celebrated and is frequently fueled by alcohol, the ambiguity that often attends sexual encounters is heightened and the risk of error in rape cases is increased”.

In this misunderstanding of what consent means, he is not alone, but is joined by, amongst others, one Roland Hulme who wrote an article entitled Alcohol & Consent: Why the Double Standard.

In his opinion piece, Hulme muses on recent tabloid stories involving celebrities having drunken sex. One example was the discussion over Bristol Palin’s description of her first sex in her autobiography, which was (quite aptly) interpreted as rape by some. Hulme however makes the argument that, as long as you are still conscious, you are still responsible for your own actions and thus can be taken at your word when you say “yes” to sex (or, don’t say “no”, or don’t kick and scream … whatever).

“In fact, in almost every aspect of life, being blacked-out, stumbling drunk does not relieve you of responsibility for the actions you take or the decisions you make; except in this ridiculous double standard of sexual consent.”

The problem with this argument is that Humle is talking consistently and exclusively of the personal responsibility of the person getting ridiculously wasted, and NOT of the person choosing to take advantage of them. While, yes, it would have been a smarter idea to not get drunk, or to at least not get drunk around people you cannot trust, that does not give anyone else the permission to abandon their own personal responsibility to not take advantage of others. If you are choosing to sleep with the person who’s slurring their words and can’t walk in a straight line, you are choosing to engage with someone who is clearly in an altered state of consciousness and who may not be able to make decisions anymore.

All philosophical waxing aside, many States in the US have actual laws in place that state that someone who is intoxicated cannot give consent. So even if you are sure that the drunken person in front of you really, really means it when they say “yes”, you may still want to hold off on sleeping with them.

What Hulme is doing, underneath all of the appeals to rational thinking and personal responsibility, is buying into the same old thinking of victim-blaming that we are surrounded with daily: if you don’t want to run the risk of getting raped, don’t get drunk. I wish we could finally turn this around, so it says that if you don’t want to be accused of rape, you shouldn’t rape. If the person in front if you cannot remember their own name, leave it be – they probably cannot give meaningful consent. And this is not about party-pooping, ruining the lives of male college students or about declaring women unfit for drinking. It’s about understanding what consent is and what it is not, and about always making sure to get and give enthusiastic consent.



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